Rohner v Scanlan

[1997] FCA 1202

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Whether reg 1.15A(2)(a)(i) of the Migration Regulations, which provides that a person is the de facto spouse of another person if the persons are of opposite sexes, is invalid - whether it is discriminatory within the meaning of the Sex Discrimination Act 1984 (Cth) - whether art 26 and art 2(1) of the International Covenant on Civil and Political Rights operate to render reg 1.15A(2)(a)(i) invalid - whether “sex” in the Covenant is to be construed as including “sexual orientation” - whether s 504(1) of the Migration Act 1958 (Cth), which gives the power to make regulations, is ambiguous.

SEX DISCRIMINATION - Whether reg 1.15A(2)(a)(i) of the Migration Regulations, which provides that a person is the de facto spouse of another person if the persons are of opposite sexes, is invalid - whether it is discriminatory within the meaning of the Sex Discrimination Act 1984 (Cth) - whether art 26 and art 2(1) of the International Covenant on Civil and Political Rights operate to render reg 1.15A(2)(a)(i) invalid - whether “sex” in the Covenant is to be construed as including “sexual orientation” - whether s 504(1) of the Migration Act 1958 (Cth), which gives the power to make regulations, is ambiguous.

Migration Act 1958 (Cth) - ss 504(1), 507
Migration Regulations - reg 1.15A(2)(a)(i), Div 2.1 Pt 2
Sex Discrimination Act 1984 (Cth) - s 26
International Covenant on Civil and Political Rights - art 26

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, applied
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381, referred to

FELIX WALTER ROHNER and BRUNO ANGELO BIONDI TINEO v LINDA SCANLAN and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
QG 57 OF 1997

LEHANE J
7 NOVEMBER 1997
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 57 of 1997

BETWEEN:

FELIX WALTER ROHNER and
BRUNO ANGELO BIONDI TINEO
Applicants

AND:

LINDA SCANLAN
First Respondent

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent

JUDGE:

LEHANE J

DATE OF ORDER:

7 NOVEMBER 1997

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. There is no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 57 of 1997

BETWEEN:

FELIX WALTER ROHNER and
BRUNO ANGELO BIONDI TINEO
Applicants

AND:

LINDA SCANLAN
First Respondent

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent

JUDGE:	LEHANE J
DATE:	7 NOVEMBER 1997
PLACE:	BRISBANE

REASONS FOR JUDGMENT

By their application, amended in accordance with orders made by Drummond J on 18 August 1997, the applicants seek, under s 39B(1A) of the Judiciary Act 1901 (Cth):

(I)a declaration as to the effect of Sections 5(1) and 26(1) of the Sex Discrimination Act 1984 (Cth) upon the proper operation of Regulation 1.15A(2)(a)(i) of the Migration Regulations:

(ii)a declaration as to the effect of Articles 2 and 26 contained in Part II of the International Covenant on Civil and Political Rights, which covenant has been declared pursuant to Section 47(1) of the Human Rights and Equal Opportunities Commission Act 1986 (Cth) upon the proper operation of Regulation 1.15A(2)(a)(i) of the Migration Regulations.

The substantive declaration sought is one to the effect that reg 1.15A(2)(a)(i) of the Migration Regulations is invalid: that invalidity is claimed by the applicants to result from the operation of ss 5(1) and 26(1) of the Sex Discrimination Act 1984 (Cth) and from the proper construction, in the light of the International Covenant On Civil And Political Rights, of the provisions of the Migration Act 1958 (Cth) by which the Governor-General is empowered to make regulations for the purposes of that Act.

In brief, the circumstances are these.  The first applicant, Mr Rohner, is a citizen of Switzerland and the second applicant, Mr Biondi Tineo, is a citizen of Peru.  The undisputed evidence of the applicants is that they have lived together for over eighteen years and have, during that period, developed a mutual commitment to a shared life to the exclusion of any other person.  Mr Rohner has applied for a Retirement (Temporary) visa.  That is a subclass 410 visa, the criteria for the grant of which are set out under the heading “Subclass 410 - Retirement” in Sch 2 to the Migration Regulations. Mr Rohner’s application included Mr Biondi Tineo as a family unit member who would accompany him in Australia. The effect of one of the criteria for the grant of a subclass 410 visa is (410.222) that the applicant’s family unit must not include anyone, other than the applicant’s spouse, dependent on the applicant. Mr Rohner’s application was refused on the ground that “the applicant fails to meet Schedule 2 criteria by including another family member in the application other than a spouse”. The record of the decision to refuse the visa was signed by the first respondent, as an officer authorised under s 65 of the Migration Act (presumably by delegation under s 496) to refuse or grant such a visa.

Statutory provisions and regulations

Section 504(1) of the Migration Act empowers the Governor-General to make regulations, not inconsistent with the Act, “prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act …”. Section 31 provides, so far as it is relevant:

31.  (1)  There are to be prescribed classes of visas.

…

(3)  The regulations may prescribe criteria for a visa or visas of a specified class …

“Prescribed” means (s 5(1)) prescribed by the regulations. Section 40 permits regulations to be made which provide that visas or visas of a specified class may only be granted in specified circumstances.

Division 2.1 of Pt 2 of the Migration Regulations prescribes, by reference to Sch 1 and Sch 2 to the regulations, classes and sub-classes of visas, conditions applicable to visas and classes of visas and circumstances in which visas may be granted.  The class of visa with which this case is concerned is item 1217 in Sch 1 and, as I have mentioned, subclass 410 in Sch 2.  There are two groups of criteria applicable to visas in the subclass, called respectively primary and secondary criteria.  The primary criteria are those which must be satisfied by at least one member of a family unit.  In this case, Mr Rohner claimed to meet those criteria.  They include:

410.222(1)       If the applicant intends to settle in Australia with his or her spouse:

(a)the family unit of the applicant does not include any other person dependent on the applicant or the applicant’s spouse; and

…

(2)If the applicant intends to settle in Australia without a spouse:

(a)the family unit of the applicant does not include a person dependent on the applicant; …

The secondary criteria (to be satisfied, in this case, by Mr Biondi Tineo) include:

410.311          The applicant is the spouse of a person who has applied for a Retirement (Temporary) (Class TQ) visa.

“Spouse” is defined in reg 1.15A.  It is not necessary to set the definition out in full.  The immediately relevant parts of it are:

1.15A. (1)       For the purposes of these Regulations, a person is the spouse of another person if:

(a)the 2 persons are:

(i)…; or

(ii)de facto spouses of each other, as set out in subregulation (2); and

(b)the Minister is satisfied that:

(i)the 2 persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii)the relationship between the 2 persons is genuine and continuing; and

(c)the Minister is satisfied that the 2 persons are:

(i)living together; or

(ii)not living separately and apart on a permanent basis.

(2)A person is the de facto spouse of another person:

(a)if the persons:

(i)are of opposite sexes; …

Thus, the provision of the regulations which the applicants claim to be invalid is that (reg 1.15A(2)(a)(i)) which permits one person to be regarded, for the purposes of the regulations, as the spouse of another only if the two persons are of opposite sexes.  But for that requirement, it would, on the evidence, be open to the Minister to be satisfied as to other aspects of the definition so that Mr Biondi Tineo would, for the purposes of the regulations, be taken to be the spouse of Mr Rohner.

A discussion of the Sex Discrimination Act 1984 (Cth) should begin with its stated objects. They are set out in s 3 as follows:

3.The objects of this Act are:

(a)to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and

(b)to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and

(ba)to eliminate, so far as possible, discrimination involving dismissal of employees on the ground of family responsibilities; and

(c)to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity; and

(d)to promote recognition and acceptance within the community of the principle of the equality of men and women.

Section 26 of the Sex Discrimination Act provides:

26.      (1)       It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy, in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

(2)      This section binds the Crown in right of a State.

Section 5(1) tells us what is discrimination on the ground of the sex of a person: among other things, a person (discriminator) discriminates against another (aggrieved person) on the ground of the sex of the aggrieved person if, by reason of the sex of the aggrieved person, the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person of the opposite sex.

Is there inconsistency between the definition of “spouse” and the Sex Discrimination Act?

The argument of the applicants on this aspect of the case was simple. It was that the application of reg 1.15A(2)(a)(i) inevitably involves “gender discrimination” and purports to require persons performing functions or exercising powers under the Migration Act and the regulations (Commonwealth law) to discriminate by reason of sex. There was, thus, a direct conflict between the regulation and s 26 of the Sex Discrimination Act; even if it were possible for the Parliament to authorise the making of a regulation which might amend or repeal a provision of an Act, that authority must be given by plain words (De L v Director-General New South Wales Department of Community Services (1997) 143 ALR 171); no such authority is, in plain terms, conferred by the Migration Act.  Thus, the Sex Discrimination Act is not amended or repealed by reg 1.15A; the regulation is ineffective or invalid to the extent that it purports to authorise conduct infringing the Sex Discrimination Act.

In my view, however, the inconsistency for which the applicants contend does not arise.  The matter is appropriately tested by considering the way in which the applicants’ visa application was dealt with.  It is not correct to say that either Mr Rohner or Mr Biondi Tineo was, by reason of his sex, treated less favourably than, in similar circumstances, a person of the opposite sex would have been treated.  For a female visa applicant, as for a male, a “spouse” is a person of the opposite sex.  Discrimination by reason of the sex of the person with whom one has a relationship is not discrimination on the ground of one’s sex.  It must be borne in mind that, for the purpose of an application for a visa in subclass 410, each of the two people concerned - the one claiming to satisfy the primary criteria and the other claiming to meet the secondary criteria - is treated as a separate applicant:  see particularly 410.311.  In each case, the relevant question is whether that applicant is discriminated against by reason of his or her sex, not that of the other applicant.

If the argument were - as during oral submissions it appeared at one stage to be - that a male applicant is discriminated against because, unlike a female applicant, his spouse cannot be male (with the corollary, of course, that a female applicant might equally be discriminated against because, unlike a male applicant, her spouse cannot be female), again, in my view, the argument should not succeed.  It is not, in my view, discriminatory for the purposes of the Sex Discrimination Act to recognise as a spouse, in the case of an applicant of either gender, only a person of the opposite sex.  It is not, after all, an object of the Sex Discrimination Act (it may be an object of other legislation not in question here) to forbid discrimination by reason of a person’s sexual orientation or of a person’s relationship with another person of the same sex.  And for the purpose, particularly, of its provisions concerning discrimination by reason of marital status, the Sex Discrimination Act itself has, in s 4(1), a definition of “de facto spouse” as, in relation to a given person, another person of the opposite sex.

For that reason, in my opinion, this aspect of the applicants’ case fails. I should add, however, that the respondents referred me to s 507 of the Migration Act, introduced by the Migration Legislation Amendment Act (No 1) 1997 (Cth). Sub-section (1) of that section provides:

(1)The Sex Discrimination Act 1984, to the extent that it applies to the status or condition of being married or being the de facto spouse of another person, does not operate in relation to:

(a)regulations, or the making of regulations, that, for the purposes of dealing with an application for a visa, specify:

(i)the nature and incidents of the relationship between a person and another person; or

(ii)the period for which a relationship of a specified kind must have existed between a person and another person;

before the person is taken to be the de facto spouse of the other person; or

(b)the performance of any function, the exercise of any power or the fulfilment of any responsibility, in connection with the administration of any such regulation.

I was at first inclined to think that that section might not save an otherwise invalid regulation made before s 507 took effect. On reflection, I doubt that that is right: the reference in par (a) to “regulations” seems, clearly enough, to contemplate regulations already made. And, despite some initial doubts, I think that the phrase “the nature and incidents of the relationship between a person and another person” should be taken to include the circumstance that the parties to the relationship are of the same sex. Nevertheless, I am not convinced that s 507 is applicable in the present case because the provisions of the Sex Discrimination Act in question here are those which apply to discrimination by reason of the sex of an aggrieved person not those that apply “to the status of being married or being the de facto spouse of another person”.  Because of the conclusion to which I have come, however, it is not necessary to form a final view about that.

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights is an international instrument which has been ratified by Australia; its text is set out in Sch 2 to that Act and “human rights”, as defined in the Act, include “the rights and freedoms recognised in the Covenant”; but it has not been incorporated into Australian domestic law.

The applicants submitted that I should apply to the construction of the regulation-making power under the Migration Act the principles stated by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 - 288:

Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party …, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument.  That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.

It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law …  The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations.  That indeed is how we would regard the proposition as stated in the preceding paragraph.  In this context, there are strong reasons for rejecting a narrow conception of ambiguity.  If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.  So expressed, the principle is no more than a cannon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations …

The particular provisions of the Covenant by reference to which, it was suggested, the Migration Act should be construed were arts 2(1) and 26.  The former article requires each State Party to the Covenant to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin property, birth or other status.  Article 26 provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Human Rights Committee established under the Covenant, in its statement of opinion in the Toonen case ((1995) 69 ALJ 600), expressed the view that “the reference to ‘sex’ in Arts 2 (par 1) and 26 is to be taken as including sexual orientation”. A different view of the words “on grounds of sex” was taken in R v Ministry of Defence, Ex parte Smith [1996] QB 517 at 543, 544 and at 560, 561; but that decision had to do with provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) and an EEC Council Directive:  both Simon Brown LJ in the Divisional Court (at 544) and (at 561) Sir Thomas Bingham MR in the Court of Appeal (with whom Henry and Thorpe LJJ agreed) point out that the Covenant uses language that is considerably wider than that used in the EEC instruments.

I confess to a degree of scepticism, even giving full weight to the approach to construction approved by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381, about the proposition that protection against discrimination on the ground of “sex” should, in art 26 of the Covenant, be construed as including discrimination on the ground of sexual orientation. Certainly, it is not unfair to apply to the Covenant the observations of Gummow J in Applicant A at 408:

This appeal illustrates difficulties which arise from the employment, in the ascertainment of rights and liabilities under particular Australian legislation, of criteria designed for an international instrument with related but distinct purposes.  The text of the international instrument may lack precision and clarity and may have been expressed in attractive but loose terms with a view to attracting the maximum number of ratifications.  The terms of the criteria therein … may be difficult of comprehension and application in domestic law.

The real difficulty, however, in adopting the applicants’ submissions is that this is not a case where the power to make regulations is expressed in ambiguous terms.  It is expressed in terms in which, though they are very broad, no relevant ambiguity has been demonstrated or even suggested.  (Cf Teoh at 287 (Mason CJ and Deane J); 287 (McHugh J); Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 146 ALR 649 at 685 (Kirby J); Kruger v Commonwealth (1997) 146 ALR 126 at 161 (Dawson J).) The contention is that there should be read into the words of the Migration Act the qualification that the power conferred does not extend to the making of a regulation contrary to Australia’s obligations under art 26 of the Covenant. Though there would be no need to go further for present purposes, it must be recognised that logically the process would not stop there. Equally, the generally-expressed power might, by reference to other obligations under the Covenant or other instruments, be subject to additional qualifications: and in circumstances where, as in my view is the case here, the construction of the international instrument concerned may not be straightforward or clear. I was not referred to any authority in which a process of construction such as that suggested by the applicants has been applied to a statutory provision, of the kind here in question, authorising in general and conventional terms the making of subordinate legislation. In my view, in the present case, there is no ambiguity, or anything else in the legislative context, warranting the limitation suggested. In my view the language of ss 504(1), 31 and 40 of the Migration Act is not susceptible of the construction contended for:  compare, in a different context, the broad language with which Polites v The Commonwealth (1945) 70 CLR 60 was concerned, and see especially the judgment of Dixon J at 77.

Having reached that conclusion, I do not need to consider other difficult questions: questions going both to the appropriateness of making any declaration and, if a declaration were to be made, as to its form. For example, even if the substance of the applicants’ arguments were to be accepted, it is not obvious that the consequence would necessarily be that reg 1.15A(2)(a)(i) should simply be “read out” of the regulations. It could not be assumed that the applicants’ arguments apply with equal force to every context in which, in the regulations, the defined term “spouse” is used.

Conclusion

For the reasons I have given, the application will be dismissed.  No orders as to costs were made by Drummond J on 18 August 1997; as, however, the respondents have now succeeded on all issues raised in the proceeding, there is no apparent reason why costs should not follow the event.  I shall, however, hear counsel as to costs.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:            7 November 1997      

Counsel for the Applicants:	Mr PG Bickford
Solicitor for the Applicants:	MacDonnells
Counsel for the Respondents:	Mr R Derrington
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	3 November 1997
Date of Judgment:	7 November 1997